An American Hero Who Fought For Birthright US Citizenship. By Roger Algase

An American Hero Who Fought For Birthright US Citizenship. By Roger Algase

During this Thanksgiving weekend we should all give thanks to a great but little known American, who fought heroically to uphold his right to US citizenship by birth in this country, and to whom every person born in America now owes his or her citizenship, regardless of race, color or parents' country or countries of origin. I refer to Wong Kim Ark, the American-born son of Chinese immigrants, who courageously and successfully sued the US government to prevent it from denying him citizenship rights because of his ethnicity and national origin. Because of his determination and refusal to let his citizenship be taken away from him because of his Chinese parentage, everyone today who was born in the United States can be secure of his or her US citizenship rights.

I will now outline his story and that of the US Supreme Court case which bears his name, U.S. v.Wong Kim Ark, 169 U.S. 649 (1898).

The following is based in part on a December, 2009 extract from the website: asian american pop culture

Wong Kim Ark (Toisanese: Wong Gim 'Ak; Cantonese: Wong Gam Dak; Mandarin: Huang Jin De) was born in San Francisco. sometme between 1868 and 1873. His father, Wong Si Ping and his mother, Wee Lee, were immigrants from Taishan, China and were not US citizens. Under the Chinese Exclusion Act of 1882, Chinese immigrants were barred from becoming US citizens through naturalization.
See, Frank H. Wu (Professor, Dean and Chancellor of the University of California Law School at Hastings) Born in the U.S.A. (2007)

In 1890, Wong's parents returned back to China to live. That same year, Wong, after traveling to China, returned back to the US and was admitted without difficulty as a US citizen, based on his birth in the US.

Four years later, in 1894, while working as a cook in San Francisco, Wong made another temporary visit to China. This time he was not so fortunate when he returned to the US. He was detained at the Port of San Francisco by US Customs and denied entry on the grounds that he was not a US citizen, since his parents were not citizens and were barred from becoming citizens by the Chinese Exclusion Act of 1882.

Wong brought a habeas corpus petition in federal court arguing that he was a US citizen by birth under the 14th Amendment to the Constitution, adopted in 1868, which provides that everyone born in the United States, and "subject to the jurisdiction thereof" is an American citizen by birth. The case wound up in the US Supreme Court.

Professor Wu points out in the above cited article that Wong's lawsuit was in keeping with a practice by 19th century Chinese immigrants in US of fighting against injustice, prejudice and discrimination:

"After Exclusion, contrary to images of a submissive subculture isolated from the mainstream, Chinese communities engaged in civil disobedience in the best tradition of American liberty...Chinese communities also organized themselves to protest their exclusion through politics and lawsuits. The Wong case was only one example."

Despite an open appeal to racial prejudice in the Solicitor General's brief on behalf of the US government, the Supreme Court ruled in favor of Wong and held that he was a US citizen by birth in the US.

The majority opinion dealt with three main issues. The first was the question whether English Common Law, which the court held to be the basis of the phrase "subject to the jurisdiction thereof", recognized citizenship though birth in a particular jurisdiction, also known as Jus Soli, as opposed to citizenship based solely on the citizenship of one's parents. The majority held that Jus Soli was indeed recognized the English Common Law as the basis of citizenship.

The majority opinion then took up the question of the purpose of the 14th Amendment's guarantee of birthright citizenship. Against the federal government's argument that the 14th Amendment was meant to protect only African-Americans, who had been ruled ineligible for US citizenship purely on racial grounds in the Supreme Court's notorious (1857) Dred Scott v. Sandford decision, the Wong majority held that the 14th Amendment was intended to protect everyone with regard to birthright citizenship, not just members of one particular ethnic group.

Finally, and in the most significant part of the decision, the Court dealt with the effect of the Chinese exclusion law on Constitutional guarantees. In ringing words which still resonate today, the Court majority ruled, in effect, that the Constitution takes precedence over bigotry and prejudice, saying that Chinese exclusion did not and cannot apply to US citizens.

The two dissenting justices argued against the majority on all three points. First, they argued that citizenship though birth in a particular jurisdiction was a holdover from medieval feudalism, in which someone was bound to the land (and the lord of that land) from birth. According to this argument, the American founders sought to overturn feudalism, and therefore recognizing a "feudalistic" basis for citizenship would go against the the whole purpose of the American revolution. Unfortunately, this absurd and ignorant argument, which it is difficult to believe that even the two dissenting justices themselves took seriously, is still in vogue among some immigration opponents. See, for example, John C. Eastman: From Feudalism to Consent: Rethinking Birthright Citizenship (heritage.org, March 30, 2006).

The Wong dissenting opinion's argument that the 14th Amendment's guarantee of birthright citizenship was meant to discriminate by race, by protecting African-Americans but not Asians, based on a truly tortured definition of the term "allegiance", was equally absurd. So was the dissenting justices' assertion that (in effect) carrying out the bigoted purpose of the exclusion laws was more important than guaranteeing basic Constitutional rights, including the right to equal protection of the law.

I will discuss how the Wong KimArk majority decision and dissent dealt with all three of the above issues in more detail in a forthcoming post. I will conclude this post by quoting again from Professor Wu:

"Today's debate over birthright citizenship brings the connection full circle. Opponents of birthright citizenship have focused on Latino immigrants...

With anxieties about immigration, some demagogues have renewed calls for a racial vision of United States citizenship... Other writers have tried to pit communities of color against one another...Yet African Americans, Asian Americans, Latinos and everyone else should see through Wong Kim Ark that the citizenship status we enjoy depends on the citizenship of others."

All of us owe a great debt of gratitude to Wong Kim Ark, a great American hero, for his valiant and successful battle to uphold the principle of birthright US citizenship for every child born in this country, irrespective of ethnicity, color or parents' national origin.
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Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business, employment and family-based immigration law for more than 30 years.

Roger's painstaking legal research and personal attention to each client's case have enabled immigrants from many parts of the world to obtain successful results and achieve their dreams of living and working in America. His email address is algaselex@gmail.com